By Farrar H.B. No. 2635
77R6870 ATP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain employee suspensions and procedures for
1-3 appealing those suspensions in certain sheriff's departments.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 158, Local Government Code, is amended by
1-6 adding Subchapter C to read as follows:
1-7 SUBCHAPTER C. EMPLOYEE SUSPENSION PROCEDURES
1-8 IN CERTAIN SHERIFF'S DEPARTMENTS
1-9 Sec. 158.061. APPLICABILITY; DEFINITIONS. (a) This
1-10 subchapter applies only to a sheriff's department that:
1-11 (1) has voted to create and is under a civil service
1-12 system under Subchapter B; and
1-13 (2) is in a county with a population of 2.3 million or
1-14 more.
1-15 (b) In this subchapter, "commission," "department," and
1-16 "employee" have the meanings assigned by Section 158.031.
1-17 Sec. 158.062. DISCIPLINARY SUSPENSIONS. (a) The sheriff
1-18 may suspend an employee under the sheriff's supervision or
1-19 jurisdiction for disciplinary reasons for a reasonable period not
1-20 to exceed 15 days. The employee may elect to begin the term of
1-21 suspension immediately on being notified of the suspension by the
1-22 sheriff. If the employee does not make that election, the sheriff
1-23 may require the employee to begin the term of the suspension on the
1-24 next business day after the date on which:
2-1 (1) the employee's right to file an appeal of the
2-2 suspension expires, if the employee does not file an appeal before
2-3 the expiration of that date; or
2-4 (2) the commission renders a decision on the appeal,
2-5 if the employee timely files an appeal of the suspension.
2-6 (b) The sheriff may suspend an employee under this section
2-7 only if the person violates a civil service rule. The sheriff may
2-8 not suspend an employee later than the 180th day after the date the
2-9 department discovers or becomes aware of the civil service rule
2-10 violation. If, during an investigation of an alleged civil service
2-11 rule violation, it is alleged that the employee under investigation
2-12 committed another violation of a civil service rule connected with
2-13 the first alleged violation, the 180-day period prescribed by this
2-14 subsection does not begin again for purposes of a suspension of the
2-15 employee if the second violation in question does not involve
2-16 untruthfulness or refusal to obey a valid order to make a
2-17 statement, and therefore the sheriff may not suspend an employee
2-18 for the second violation later than the 180th day after the date
2-19 the department discovers or becomes aware of the original
2-20 violation.
2-21 (c) If the sheriff suspends an employee, the sheriff shall,
2-22 within 120 hours after the employee is notified of the suspension,
2-23 file a written statement of action with the commission.
2-24 (d) The suspension is void and the employee is entitled to
2-25 the employee's full pay if the sheriff:
2-26 (1) fails to file the statement during the required
2-27 time; or
3-1 (2) suspends the employee later than the 180th day
3-2 after the date the department discovers or becomes aware of the
3-3 violation that resulted in the suspension.
3-4 (e) The provisions of Subsections (d), (e), (h), and (i) of
3-5 Section 158.063 apply to this section.
3-6 Sec. 158.063. INDEFINITE SUSPENSIONS. (a) The sheriff may
3-7 indefinitely suspend an employee under the sheriff's supervision or
3-8 jurisdiction for the violation of a civil service rule. An
3-9 indefinite suspension takes effect on the next business day after
3-10 the date on which:
3-11 (1) the employee's right to file an appeal of the
3-12 suspension expires, if the employee does not file an appeal before
3-13 the expiration of that date; or
3-14 (2) the commission renders a decision on the appeal,
3-15 if the employee timely files an appeal of the suspension.
3-16 (b) If the sheriff suspends an employee, the sheriff shall,
3-17 within 120 hours after the hour of suspension, file a written
3-18 statement with the commission giving the reasons for the
3-19 suspension. The sheriff shall immediately deliver a copy of the
3-20 statement in person to the suspended employee.
3-21 (c) The copy of the written statement must inform the
3-22 suspended employee that if the employee wants to appeal to the
3-23 commission, the employee must file a written appeal with the
3-24 commission not later than the 10th day after the date the employee
3-25 receives the copy of the statement.
3-26 (d) The written statement filed by the sheriff with the
3-27 commission must point out the civil service rule alleged to have
4-1 been violated by the suspended employee and must describe the
4-2 alleged acts of the employee that the sheriff contends are in
4-3 violation of the civil service rules. It is not sufficient for the
4-4 sheriff merely to refer to the provisions of the rules alleged to
4-5 have been violated.
4-6 (e) If the sheriff does not specifically point out in the
4-7 written statement the act or acts of the employee that allegedly
4-8 violated civil service rules, the commission shall promptly
4-9 reinstate the employee.
4-10 (f) If the sheriff offers a suspension of 16 to 90 calendar
4-11 days for violation of civil service rules, the employee may agree
4-12 in writing to voluntarily accept the suspension, with no right of
4-13 appeal. The employee must accept the offer not later than the
4-14 fifth working day after the date the offer is made. If the
4-15 employee refuses the offer and wants to appeal to the commission,
4-16 the employee must file a written appeal with the commission not
4-17 later than the 15th day after the date the employee receives the
4-18 copy of the written statement of suspension.
4-19 (g) In the original written statement and charges and in any
4-20 hearing conducted under this chapter, the sheriff may not complain
4-21 of an act that did not occur within the six-month period preceding
4-22 the date on which the sheriff suspends the employee.
4-23 (h) In preparing the written statement to be filed with the
4-24 commission and in assessing the reasonableness of an employee's
4-25 suspension, the sheriff may not refer to or consider any previous
4-26 suspension the employee may have had and for which the employee
4-27 timely filed an appeal, unless the commission has rendered its
5-1 decision on the appeal.
5-2 (i) The sheriff may not revoke, suspend, or deny an
5-3 application for extra employment, regardless of whether that
5-4 employment involves the duties of the employee, because of a
5-5 suspension for which the employee timely filed an appeal, unless
5-6 the commission has rendered its decision on the appeal.
5-7 Sec. 158.064. GENERAL PROCEDURES FOR APPEAL OF SUSPENSION TO
5-8 COMMISSION. (a) An appeal by an employee to the commission from
5-9 an action for which an appeal or review is provided by this
5-10 subchapter is sufficient if the employee files it with the
5-11 commission not later than the 10th day after the date on which the
5-12 action occurred.
5-13 (b) The appeal must include the basis for the appeal and a
5-14 request for a commission hearing. The appeal must also contain a
5-15 statement denying the truth of the charge as made, a statement
5-16 taking exception to the legal sufficiency of the charge, a
5-17 statement alleging that the recommended action does not fit the
5-18 offense or alleged offense, or a combination of these statements.
5-19 (c) In each hearing, appeal, or review of any kind in which
5-20 the commission performs an adjudicatory function, the affected
5-21 employee is entitled to be represented by counsel or a person the
5-22 employee chooses. Each commission proceeding shall be held in
5-23 public.
5-24 (d) The commission may issue subpoenas and subpoenas duces
5-25 tecum for the attendance of witnesses and for the production of
5-26 documentary material.
5-27 (e) The affected employee may request the commission to
6-1 subpoena any books, records, documents, papers, accounts, or
6-2 witnesses that the employee considers pertinent to the case. The
6-3 employee must make the request before the 10th day before the date
6-4 the commission hearing will be held. If the commission does not
6-5 subpoena the material, the commission shall, before the third day
6-6 before the date the hearing will be held, make a written report to
6-7 the employee stating the reason it will not subpoena the requested
6-8 material. This report shall be read into the public record of the
6-9 commission hearing.
6-10 (f) Witnesses may be placed under the rule at the commission
6-11 hearing.
6-12 (g) The commission shall conduct the hearing fairly and
6-13 impartially as prescribed by this subchapter and shall render a
6-14 just and fair decision. The commission may consider only the
6-15 evidence submitted at the hearing.
6-16 (h) The commission shall maintain a public record of each
6-17 proceeding with copies available at cost.
6-18 Sec. 158.065. APPEAL OF DISCIPLINARY SUSPENSION. (a) If a
6-19 suspended employee appeals a disciplinary suspension to the
6-20 commission, the commission shall determine if just cause exists for
6-21 the suspension.
6-22 (b) If the commission finds that the period of disciplinary
6-23 suspension should be reduced, the commission may order a reduction
6-24 in the period of suspension. The commission may reverse the
6-25 sheriff's decision and instruct the sheriff to immediately restore
6-26 the employee to the employee's prior position and to repay the
6-27 employee for any lost wages.
7-1 (c) If the sheriff refuses to obey a commission order, the
7-2 provisions of Section 158.066(f) relating to the sheriff's refusal
7-3 apply to this section.
7-4 (d) The provisions of Sections 158.066(b) and (e) apply to
7-5 this section.
7-6 Sec. 158.066. APPEAL OF INDEFINITE SUSPENSION. (a) If a
7-7 suspended employee appeals an indefinite suspension to the
7-8 commission, the commission shall hold a hearing and render a
7-9 decision in writing not later than the 30th day after the date it
7-10 receives notice of appeal.
7-11 (b) In a hearing conducted under this section, the sheriff
7-12 is restricted to the sheriff's original written statement and
7-13 charges, which may not be amended.
7-14 (c) In its decision, the commission shall state whether the
7-15 suspended employee is:
7-16 (1) permanently dismissed from the sheriff's
7-17 department;
7-18 (2) temporarily suspended from the department; or
7-19 (3) restored to the employee's former position or
7-20 status in the department's classified service.
7-21 (d) If the suspended employee is restored to the position or
7-22 class of service from which the employee was suspended, the sheriff
7-23 shall immediately reinstate the employee as ordered, and the
7-24 employee is entitled to full compensation at the rate of pay
7-25 provided for the position or class of service from which the
7-26 employee was suspended for the actual time lost as a result of the
7-27 suspension. If the sheriff fails to reinstate the employee, the
8-1 employee is entitled to the employee's salary as if the employee
8-2 had been regularly reinstated.
8-3 (e) The commission may suspend or dismiss an employee only
8-4 for violation of civil service rules and only after a finding by
8-5 the commission of the truth of specific charges against the
8-6 employee.
8-7 (f) If a sheriff intentionally refuses to obey a lawful
8-8 commission order of reinstatement, the commission may punish the
8-9 sheriff for contempt. The commission has the same authority to
8-10 punish for contempt as has a justice of the peace.
8-11 Sec. 158.067. APPEAL TO DISTRICT COURT. Each appeal of an
8-12 indefinite suspension to a district court under Section 158.037
8-13 shall be advanced on the district docket and given a preference
8-14 setting over all other cases.
8-15 Sec. 158.068. RECORDS OF OVERTURNED DISCIPLINARY ACTION OR
8-16 UNSUSTAINED COMPLAINT. (a) If the disciplinary action was
8-17 overturned on appeal by the commission, an independent third-party
8-18 hearing examiner, or a court of competent jurisdiction, the sheriff
8-19 shall promptly order that the records of a disciplinary action
8-20 taken against an employee be expunged from each file maintained on
8-21 the employee by the department. Documents that must be expunged
8-22 under this subsection include all documents that indicate
8-23 disciplinary action was recommended or taken against the employee,
8-24 such as the recommendations of a disciplinary committee or a letter
8-25 of suspension. This subsection does not apply if:
8-26 (1) the disciplinary action was only reduced and not
8-27 overturned; or
9-1 (2) the employee is charged with excessive force that
9-2 results in a death or injury and the charge is being investigated
9-3 by a law enforcement or criminal justice agency other than the
9-4 department.
9-5 (b) The department shall maintain an investigatory document
9-6 that relates to a disciplinary action against an employee that was
9-7 overturned on appeal, or any document in the possession of the
9-8 department that relates to a charge of misconduct against an
9-9 employee that the department did not sustain, only in a file
9-10 created by the department for the department's use. The department
9-11 may not release those documents to any agency or other person
9-12 except another law enforcement agency.
9-13 Sec. 158.069. REINSTATEMENT. (a) If the commission, a
9-14 hearing examiner, or a district court orders that an employee
9-15 suspended without pay be reinstated, the county shall, before the
9-16 end of the second full pay period after the date the person is
9-17 reinstated, repay to the employee all wages lost as a result of the
9-18 suspension.
9-19 (b) If the county does not fully repay all lost wages to the
9-20 employee as provided by this section, the county shall pay the
9-21 employee an amount equal to the lost wages plus accrued interest.
9-22 (c) Interest under Subsection (b) accrues beginning on the
9-23 date of the employee's reinstatement at a rate equal to three
9-24 percent plus the rate for court judgments under Chapter 304,
9-25 Finance Code, that is in effect on the date of the employee's
9-26 reinstatement.
9-27 Sec. 158.070. UNCOMPENSATED DUTY. (a) In this section,
10-1 "uncompensated duty" means days of work without pay in a department
10-2 and does not include a regular or normal work day.
10-3 (b) The sheriff may assign an employee under the sheriff's
10-4 jurisdiction or supervision to uncompensated duty. The sheriff may
10-5 not impose uncompensated duty unless the employee agrees to the
10-6 duty.
10-7 (c) If the employee agrees in writing to accept
10-8 uncompensated duty, the sheriff shall give the employee a written
10-9 statement that specifies the date or dates on which the employee
10-10 will perform the duty. An employee who agrees to accept the duty
10-11 does not have a right to an administrative or judicial review.
10-12 (d) The uncompensated duty may be in place of or in
10-13 combination with a period of disciplinary suspension without pay.
10-14 If uncompensated duty is combined with a disciplinary suspension,
10-15 the total number of uncompensated duty days may not exceed 15.
10-16 (e) An employee may not earn or accrue a benefit arising
10-17 from length of service or any wage or salary while the person is
10-18 suspended or performing uncompensated duty.
10-19 (f) A disciplinary suspension does not constitute a break in
10-20 a continuous position or in service in the department in
10-21 determining eligibility for a promotional examination.
10-22 (g) Except as provided by this section, an employee
10-23 performing assigned uncompensated duty retains all rights and
10-24 privileges of the employee's position in the department and of the
10-25 employee's employment by the county.
10-26 Sec. 158.071. HEARING EXAMINERS. (a) In addition to the
10-27 other notice requirements prescribed by this subchapter, a sheriff
11-1 who takes disciplinary action that is covered by this subchapter
11-2 against an employee shall issue a letter of disciplinary action to
11-3 the employee. The letter must state that in an appeal of the
11-4 disciplinary action, the appealing employee may elect to appeal to
11-5 an independent third party hearing examiner instead of to the
11-6 commission. The letter must also state that if the employee elects
11-7 to appeal to a hearing examiner, the person waives all rights to
11-8 appeal to a district court under Section 158.037 except as provided
11-9 by Subsection (k).
11-10 (b) To exercise the choice of appealing to a hearing
11-11 examiner, the appealing employee must submit to the commission a
11-12 written statement within the time required for an appeal to the
11-13 commission under this subchapter stating the person's decision to
11-14 appeal to a hearing examiner.
11-15 (c) The hearing examiner's decision is final and binding on
11-16 all parties. If the employee decides to appeal to a hearing
11-17 examiner, the person automatically waives all rights to appeal to a
11-18 district court except as provided by Subsection (k).
11-19 (d) If the appealing employee chooses to appeal to a hearing
11-20 examiner, the employee and the sheriff, or their designees, shall
11-21 first attempt to agree on the selection of an impartial hearing
11-22 examiner. If the parties do not agree on the selection of a
11-23 hearing examiner on or before the 11th day after the date the
11-24 appeal is filed, the director of the commission shall immediately
11-25 request a list of seven qualified neutral arbitrators from the
11-26 American Arbitration Association or the Federal Mediation and
11-27 Conciliation Service, or their successors in function. The
12-1 employee and the sheriff, or their designees, may agree on one of
12-2 the seven neutral arbitrators on the list. If they do not agree
12-3 within five working days after the date they received the list,
12-4 each party or the party's designee shall alternate striking a name
12-5 from the list and the name remaining is the hearing examiner. The
12-6 parties or their designees shall agree on a date for the hearing.
12-7 (e) The appeal hearing shall begin as soon as the hearing
12-8 examiner can be scheduled. If the hearing examiner cannot begin
12-9 the hearing before the 46th day after the date of selection, the
12-10 employee may, within two days of learning that fact, call for the
12-11 selection of a new hearing examiner using the procedure prescribed
12-12 by Subsection (d).
12-13 (f) In each hearing conducted under this section, the
12-14 hearing examiner has the same duties and powers as the commission,
12-15 including the right to issue subpoenas.
12-16 (g) In a hearing conducted under this section, the parties
12-17 may agree to an expedited hearing procedure. Unless otherwise
12-18 agreed by the parties, in an expedited procedure the hearing
12-19 examiner shall render a decision on the appeal before the 11th day
12-20 after the date the hearing ended.
12-21 (h) In an appeal that does not involve an expedited hearing
12-22 procedure, the hearing examiner shall make a reasonable effort to
12-23 render a decision on the appeal before the 31st day after the later
12-24 of the date the hearing ends or the date the briefs are filed.
12-25 (i) The hearing examiner's inability to meet the time
12-26 requirements imposed by this section does not affect the hearing
12-27 examiner's jurisdiction, the validity of the disciplinary action,
13-1 or the hearing examiner's final decision.
13-2 (j) The hearing examiner's fees and expenses are shared
13-3 equally by the appealing employee and by the department. The costs
13-4 of a witness are paid by the party who calls the witness.
13-5 (k) A district court may hear an appeal of a hearing
13-6 examiner's award only on the grounds that the hearing examiner was
13-7 without jurisdiction or exceeded its jurisdiction or that the
13-8 decision was procured by fraud, collusion, or other unlawful means.
13-9 An appeal must be brought in a district court having jurisdiction
13-10 in the county in which the sheriff's department is located.
13-11 SECTION 2. This Act takes effect September 1, 2001, and
13-12 applies to the suspension of a sheriff's department employee on or
13-13 after that date. The suspension of a sheriff's department employee
13-14 before the effective date of this Act is governed by the law in
13-15 effect on the date of suspension, and the former law is continued
13-16 in effect for that purpose.